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PATNA HIGH COURT
Anjana Prakash, J.
Dr. Rajuma Baudha —Petitioner
versus
State of Bihar & Anr. —Opposite Parties
Cr. Misc. No. 13116 of 2009
Decided on 22-07-2011
Counsel for Parties:
For the Petitioner:M/s. Devendra Prasad Sinha and Rajesh Sinha, Advocate.
For the Opposite Party No.1:Mr. Arun Kumar, Advocate.
For the Opposite Party No. 2:Mr. Bhanu Pratap Singh, APP, Advocate.
IMPORTANT POINT
Premature complaint cannot be sustained.
Headnote:Negotiable Instruments Act, 1881—Section 138 read with Sections 406 and 420 of IPC—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Cognizance—After cause of action has arisen drawer has a right to prosecute only when accused fails to pay within fifteen days of receipt of notice—Within nine days of sending notice complaint was filed—Clause (c) of section 138 of N.I. Act is offended—This would make prosecution of petitioner untenable under section 138 of N.I. Act—As for offence under section 406 and 420 IPC , apart from bald allegation that petitioner has misappropriated complainant’s salary, there is no cogent proof of same by way of pay—Relationship of complainant and petitioner was by way of agreement and when a clause of bilateral agreement was not honored by one party same would merely mean breach of agreement—It would give rise to civil dispute and no offence under section 420 IPC would be made out—Impugned order set aside—Application allowed. (Paras 8 to 10)
Result: Application allowed.
Anjana Prakash, J.—The petitioner has sought quashing of the order dated 12.05.2008 by which the Judicial Magistrate, 1st class, Danapur, Patna, has taken cognizance under section 406 and 420 Indian Penal Code and section 138 of the Negotiable Instrument Act in Complaint Case No.133-C of 2008.
2. The case of the complainant is that accused persons visited the complainant at his house and requested him to join as Sr. Lecturer in Awadh Institute of Dental Sciences, Lucknow, giving him hopes of its bright future. On 01.02.2007 the complainant received appointment letter duly signed by the petitioner. Pursuant to which he joined the said institute and was promoted to the post of Reader. On 13.02.2007, the petitioner allegedly gave him twelve post dated cheques in his favour against salary account after TDS for the period February, 2007 to January, 2008. In Patna High Court Cr. Misc. No.13116 of 2009dt.22-07-2011 due course of time, the complainant deposited eleven cheques out of which two cheques were credited in his account but rest nine cheques were dishonoured on account of ‘stop payment’ which was reported to him by the bank official of Canada Bank, Danapur Cantt-Branch. It is alleged that the act of issuance of cheques by the petitioner without sufficient funds in his account was a criminal offence and amounts to criminal breach of trust, cheating and wrongful loss to the complainant. It is further alleged that amount of Rs.1,33,749/- was misappropriated by the accused persons. The complainant has averred that he sent a legal notice on 07.02.2008 through one Anil Kumar Gupta, Advocate, but till the filing of the complaint the cheques were not honoured and, therefore, the complaint was filed on 19.02.2008.
3. Counsel for the petitioner submits that the petitioner indeed was the Chairman of Awadh Institute of Dental Sciences, Lucknow, and had appointed the complainant as Sr. Lecturer in the said institute but he absented himself from April, 2007, on account of which he sent a notice to him. He also wrote about the retention of the post dated cheques given to him at the time of appointment and that his pay would not be released. He produced an agreement between the Institute and the complainant, wherein, one of the clause was that as Sr. Lecturer the Complainant would not resign from the Institute till the end of three years and if he did so, he would have to give a notice of three months prior at hand or salary for three months would be forfeited. It is also specifically mentioned that salary was fixed for Rs.16,000/- per month and, therefore, the amount being claimed by the complainant at this stage is completely absurd. Further submission is that under section 138 of the Negotiable Instrument Act cause of action arise only when the accused has not made payment within fifteen days of the receipt of notice. The complainant’s act of not waiting for the stipulated period and filing the complaint within twelve days of Patna High Court Cr. Misc. No.13116 of 2009 dt.22-07-2011 sending the notice to him, the complaint was bad so far as the offence punishable under section Negotiable Instrument Act is concerned.
4. On the other hand, counsel for the complainant submits that the petitioner is running a fake institution and has been hauled up by the police which some newspaper clipping demonstrate and, therefore, he should not be spared when he has cheated the complainant in the manner as he has done. Further submission is that in the facts of the case a clear case of cheating and misappropriation is made out. As for section 138 of the Negotiable Instrument Act, the counsel for the opposite party no.2 contends that since the notices were sent to Lucknow which is at a short distance from Patna, it may be presumed that it was received in very next few days and, therefore, the complaint was not filed in a hurry. He also submits that one of the accused persons in Lucknow had replied to the notice on 12.02.2008 and, therefore
